6.  The applicant was born in 1979 and is currently detained in Remscheid Prison.
7.  On 3 February 2003 the Cologne District Court, having held a hearing at which the applicant and his lawyer had been present and witnesses had been heard, convicted the applicant of bodily injury and sentenced him to a fine amounting to 100 daily payments of fifteen euros (EUR). The applicant had pleaded for his acquittal.
8.  The applicant, represented by counsel, lodged an appeal against that judgment.
9.  On 11 June 2003 the Cologne Regional Court held a hearing at which the applicant’s counsel was present whereas the applicant failed to attend in person. Several witnesses had equally been summoned. The applicant’s counsel explained that an arrest warrant had been issued against the applicant in respect of different charges. The applicant had therefore chosen not to attend the hearing in person but wished to be represented by his counsel. He claimed that, having regard to Article 6 § 3 (c) of the Convention, a defendant was entitled to be represented by a lawyer in appeal proceedings.
10.  By a judgment of the same day, the Regional Court, granting the request made by the Public Prosecutor’s Office, dismissed the applicant’s appeal. It found that the applicant had lodged his appeal within the prescribed time-limit. However, he had failed to attend the hearing before the Regional Court, to which he had been summoned, without sufficient excuse. He also had not been entitled to be represented by counsel. Therefore, his appeal had to be dismissed pursuant to Article 329 § 1, first sentence, of the Code of Criminal Procedure (see paragraph 25 below).
11.  On 26 September 2003 the Cologne Court of Appeal dismissed the applicant’s appeal on points of law, in which he had referred to his defence rights under Article 6 of the Convention, as ill-founded, as the judgment of the Regional Court did not disclose an error of law.
12.  On 22 October 2003 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that the decision of the Regional Court, as confirmed by the Court of Appeal, not to deal with his appeal on the merits due to his failure to appear at the hearing had violated his right of access to court, his right to be heard in court and his right to defend himself through a lawyer as guaranteed by the Basic Law.
13.  On 27 December 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint as it was ill-founded (file no. 2 BvR 1872/03). The decision was served on the applicant’s counsel on 23 January 2007.
14.  The Federal Constitutional Court found that the applicant’s right to an effective defence, which was inherent in his right to a fair trial under the Basic Law, had not been breached. In coming to this conclusion, it also had regard to the case-law of the European Court of Human Rights on Article 6 §§ 1 and 3 (c) of the Convention. It stressed that the Court, in its case-law, had never found that an application of Article 329 § 1 of the German Criminal Code failed to comply with Article 6 of the Convention.
15.  The Federal Constitutional Court stressed that the applicant’s right to an effective defence had to be interpreted in the context of the system of appeals of the Code of Criminal Procedure and of further fundamental rights, such as the right to be heard and the principle of immediacy (Unmittelbarkeitsgrundsatz). Following an appeal (Berufung), the appellate court conducted fresh proceedings in respect of questions of both fact and law and took its own decision after having taken evidence. The principles of oral and public proceedings and of immediacy applied also to proceedings before the appellate courts. Under the provisions of the Code of Criminal Procedure, criminal proceedings as a rule could not be conducted in the defendant’s absence, even before an appellate court. Therefore, in cases covered by Article 329 § 1, first sentence, of the Code of Criminal Procedure, there was no hearing on the merits, but the judgment delivered by the court of first instance in the defendant’s presence was upheld.
16.  The Federal Constitutional Court further reasoned that the right to an effective defence could not be asserted irrespective of further rights and principles laid down in the Basic Law and the Code of Criminal Procedure. Article 329 § 1, first sentence, of the Code of Criminal Procedure did not only aim at preventing a defendant from delaying proceedings against him by his absence, but also at securing his presence at the hearing, which was both a right and a duty. It was based on the understanding that a court only complied with its duty to establish the truth and to fix a fair penalty if it had seen the defendant in person and had heard his defence. Both under Article 14 § 3 of the International Covenant on Civil and Political Rights and under the European Convention on Human Rights the right to defend oneself entailed the right to be present. That right secured an unrestrained defence, but was at the same time a duty aimed at establishing the truth, for which the defendant’s conduct and his submissions or even his silence could be helpful. There were only very limited exceptions to the rule that no trial should be conducted in the defendant’s absence (Articles 231 § 2, 231a, 231b, 231c, 232, 233, 247, 329 § 2, 350 § 2, 387 § 1, 411 of the Code of Criminal Procedure; see paragraphs 25-30 below).
17.  The right and duty to be present related to the principles of immediacy and of oral proceedings which aimed at establishing a sound basis for the court’s decision and reflected the defendant’s right to be heard. As the defendant’s presence did not exclusively serve to secure his rights, he was not free to waive his right to be present or to delegate it to his defence counsel.
18.  The legislator had decided not to authorise a criminal trial in the defendant’s absence. Therefore, Article 329 § 1, first sentence, of the Code of Criminal Procedure proportionately restricted the defendant’s right to decide on the way in which he wanted to exercise his right to be heard and his right to defend himself through counsel. Having regard to the principles lying at the heart of the German criminal trial, the right to a fair trial did not oblige the legislator or the courts to authorise a defendant who failed to attend his trial to be represented by his defence counsel.
19.  The Federal Constitutional Court further observed that the German courts, in interpreting the law, were obliged to have regard to the provisions of the Convention and to the decisions taken by the European Court of Human Rights within the limits of a methodically arguable interpretation of the applicable German law. There was no judgment of the European Court of Human Rights finding a violation of the Convention in respect of Article 329 § 1 of the Code of Criminal Procedure, under which the defendant was not authorised to be absent and to have himself represented by his defence counsel at his trial. However, the European Court of Human Rights had given judgments in respect of other Contracting States to the Convention which concerned the defendant’s absence and his counsel’s presence in order to defend him at trial (see Poitrimol v. France, 23 November 1993, Series A no. 277‑A; Lala v. the Netherlands, 22 September 1994, Series A no. 297‑A; Pelladoah v. the Netherlands, 22 September 1994, Series A no. 297‑B; Van Geyseghem v. Belgium [GC], no. 26103/95, ECHR 1999‑I; and Krombach v. France, no. 29731/96, ECHR 2001‑II). That court had found that the fact that the defendant, in spite of having been properly summoned, did not appear, could not justify depriving him of his right under Article 6 § 3 (c) of the Convention to be defended by counsel.
20.  According to the Federal Constitutional Court, it could be left open whether the principles established in these cases, having regard to the differences of fact and in the national law which they had concerned, applied without restrictions to the case at issue. In particular, in some of the cases decided by the European Court of Human Rights the defendant had not been heard with legal arguments which, in a German criminal trial, as a rule, had to be examined by the courts ex officio. In any event, Article 329 § 1, first sentence, of the Code of Criminal Procedure complied with Article 6 of the Convention. It only concerned the defendant’s absence at his trial before the appellate court. The fact that his case was not dealt with anew on the merits was a result of his own decision not to attend the hearing without sufficient excuse and did not breach his rights under Article 6 § 3 (c) if, as was the rule, a trial at first instance had been held in his presence. If an arrest warrant had been issued against him for different charges, it was up to the defendant to resolve the conflict this entailed for him as he deemed best. It was not imperative to resolve this conflict for him by authorising him to be represented by his defence counsel at the trial on his appeal. Furthermore, the fact that defence counsel could not claim a hearing in such a case did not breach the principle of “equality of arms”. This principle applied to a hearing on the merits, which was not held in cases covered by Article 329 § 1 of the Code of Criminal Procedure. The said provision also did not deprive the defendant of legal assistance within the meaning of Article 6 § 3 (c). Counsel could claim in court that the requirements of Article 329 of the Code of Criminal Procedure were not met. Otherwise, trials in absentia would in fact be authorised.
21.  The Federal Constitutional Court further set out that under Article 329 § 4 of the Code of Criminal Procedure (see paragraph 25 below), the court could also order the defendant’s arrest in order to secure his presence at his trial instead of dismissing his appeal without a hearing on the merits. However, such an order was not appropriate to enforce the defendant’s own interest, in particular if there were no indications that he was ready to attend the hearing.
22.  The Federal Constitutional Court further found that for the said reasons the defendant’s right of access to court had not been violated, even assuming that the defendant had substantiated sufficiently this complaint.